HANSON CONSTRUCTION MATERIALS PTY LIMITED CONCRETE CARRIERS CONTRACT DETERMINATION
INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES
Application by Hanson Construction Materials Pty Ltd, industrial organisation of employers.
(No. IRC 6774 of 2004)
Before Mr Deputy President Sams / 27 April 2004DETERMINATION
Index
Clause No. Subject Matter
1. Definitions
2. Area Incidence and Duration
3. Term of Contracts of Carriage
4. Assignment of Contracts of Carriage
5. Cartage Rates
6. Safety Net
7. Cartage Accounts
8. Living away from Home Allowance
9. Statutory Requirements and Insurance
10. Loading
11. Hazardous Approach to Job Site
12. Availability of a Suitable Vehicle
13. Responsibility for Load
14. Breakdowns
15. Two-Way Radio and GPS Equipment
16. Provision of Mixer
17. Mixer Care and Maintenance
18. Painting and/or Signwriting of the Mobile Unit
19. Manning
20. Uniforms
21. Amenities
22. Fleet Size
23. Commitment to Training
24. Disputes Procedure
25. Rostering
26. Plant Stored Carrier's Equipment
27. Business Viability
28. Occupational Health and Safety
29. Environment Protection and Pollution Control
30. Contractor's Subsidiary Companies
1. Definitions
1.1 For the purpose of this Contract Determination the following terms shall bear the meaning:
The Act shall mean - the Industrial Relations Act 1996 (NSW)
Award shall mean - the Transport Industry - Mixed Enterprises (State) Award as varied from time to time.
Concrete shall mean - a product whether mixed, blended or batched, that contains but not limited to as a minimum: cement, aggregate, sand and water; mortar containing cement sand and water; grout containing cement, sand and water; slurry containing cement and water; or binders containing cement and sand. This definition is not contingent on the method of production, laying or description of the finished product.
Continuous Pours shall mean -
(a) A slab and any walls, columns, stairs and the like, provided they are an integral part of the said slab and are poured at the same time;
(b) Road pavements; or
(c) Multiple strip footings within a radius of 1/2 kilometre.
All other work is excluded as a continuous pour.
Contract of Carriage shall have the meaning defined in the Act.
Contract Carrier or Carrier shall mean - a single operator owner driver trading as an incorporated body (where the operator owner driver is a director and controlling shareholder of the incorporated body) who is engaged under a contract of carriage with the Principal Contractor as defined.
Contractor shall mean - Principal Contractor as defined in the Act. The Principal Contractor in this Contract Determination is Hanson Construction Materials Pty. Ltd.
Country means - the area outside the Sydney Metropolitan Area as defined and within New South Wales.
Cyclic roster shall mean:
(a) a roster made up of truck numbers, which dictates the selection of a particular vehicle for a function and is addressed from the first truck number to the last;
(b) when the roster has been fully addressed the roster then changes so that the truck number that was first becomes last. Each truck number is moved up one position in turn, and so on; and
(c) Each Carrier will start the day, when not rostered off, in order of a single cyclic roster and thereafter in order of his return to plant.
Mini truck shall mean- a truck with an agitator that has a mixing capacity of 2.8 m3 or less.
Mixer shall also mean - Agitator and vice versa.
Sydney Metropolitan Area is, for the purpose of this Contract Determination, limited to the area in which concrete is produced and delivered within the following boundaries:
Stanwell Tops, Bulli, Mt. Ousley, Appin, Razorback, Warragamba, Emu Plains, Sackville, Hawkesbury Bridge, Terry Hill, Palm Beach (See Schedule H).
Union shall mean - the Transport Workers' Union of New South Wales which term includes the Ready mixed Concrete Executive Committee of the Union.
Written Authority shall mean - any approved document that bears the signature of the Carrier or the Contractor as the case may be.
1.2 Interpretation
Words importing the singular number shall include the plural number and words importing the plural number shall include the singular number.
The masculine gender shall include the feminine and neuter genders.
2. Area Incidence and Duration
(a) This Contract Determination contains all of the rights and obligations of the Contractor and Carriers. The Contractor is hereby exempted from the Transport Industry Concrete Haulage Contract Determination.
(b) This Contract Determination shall take effect on and from 1st November 2004 and shall remain in force for a period of three (3) years (unless varied by written agreement prior to that time). Notation: This Contract Determination represents a ten (10) year commitment by both parties. It is not the intention of either party to vary that commitment.
3. Term of Contracts of Carriage
3.1 Carriers shall be granted Contracts of Carriage with the Contractor as follows:
(a) The term of the Contact of Carriage shall be ten (10) years commencing on 1st November 2004 if the Carrier provides a truck:
(i) which is aged between 0 and 4 years (for Sydney Metro) or between 0 and 8 years (for NSW Country) as at 1 November 2003; and
(ii) which has a gross carrying capacity of 22.5 tonnes (6wheelers) or 27.5 tonnes (8 wheelers).
(b) Where the Carrier cannot provide a truck which is aged between 0 and 4 years (for Sydney Metro) but is able to provide a truck which is aged between 4 and 8 years as at 1 November 2003 and otherwise complies with the requirements of sub-clause (ii) above then the Carrier shall be granted a five (5) year Contract of Carriage.
Where the Carrier introduces a truck to the fleet which meets the age criteria in sub clause (a) above and this introduction is effected during the five (5) year contract period then that Carrier shall receive a further five (5) year extension to make a total of a ten (10) year contract.
Notation: the age of a truck is to be determined by reference to the date upon which the vehicle was first registered.
(c) Where the Carriers listed hereunder provide a truck which is capable of operating an hydraulic agitator and is in a reasonable condition as determined by the Contractor then the Carrier shall be granted a five (5) year Contract of Carriage. The Carriers are:
PLC2265 at Moree
PLC2216 at Moree
PLC2295 at Gunnedah
PLC2232 at Blayney
PLC2223 at Cowra
(d) Notation: If the NSW State Government introduce changes to the laws relating to truck carrying capacities or legal loading limits then Carriers covered by this Contract Determination may choose to modify or change their truck in order to comply with the changed laws and take advantage of increased carrying capacities. In any event all Carriers must provide trucks which comply with the law as varied by the government from time to time.
3.2 Termination of Contracts of Carriage
(a) From 1 November 2004 if the Contractor decides to terminate a contract of carriage for any reason other than serious misconduct the Contractor shall pay to the Carrier an immediate termination payment of $66,000.00 and the contract shall terminate forthwith. In addition to the termination payment the Contractor shall offer to purchase the truck owned by the Carrier at the relevant market value at that time. The Carrier may choose to accept or reject the offer of the Contractor.
(b) Where the Contractor terminates a contract of carriage at any time by reason of serious misconduct by the Carrier then the Contractor has the right to terminate the contract without notice and without an obligation to make any compensation payment to the Carrier. For the purposes of this Arrangement "serious misconduct" may include acts of physical violence, serious theft, serious threats made to a person, gross negligence.
(c) Where a Carrier decides to leave the fleet and not invoke the provisions of Clause 4 Assignment of Contracts of Carriage then the Carrier must give the Contractor no less than one (1) months notice of intention to leave. The Contractor and the Carrier may negotiate a purchase by the Contractor of the Carrier’s truck if they so choose.
4. Assignment of Contracts of Carriage
4.1 For the period between 1 November 2004 and 31 October 2005 any Carrier may assign the contract of carriage on the open market provided that no more than three (3) Carriers will be permitted to assign each calendar month. Thereafter Carriers with more than 8 or more years service with the company or its predecessors in title may assign on the open market on the following terms:
(i) the Carrier has no obligation to first offer the contract for assignment to the Contractor;
(ii) the purchaser introduced by the Carrier must be approved by the Contractor. Approval will not be unreasonably withheld but the Purchaser will be required to pass a pre-engagement medical and submit to a check of their previous work history;
(iii) the assignment shall take place on the last business day of the relevant calendar month;
(iv) no more than eight (8) such assignments in Sydney Metro and eight (8) such assignments in NSW Country shall be permitted to occur each year.
Note: The parties acknowledge that 12 long serving carriers have already been given approval to assign their contracts of carriage on the open market between 1st November 2004 and 31st October 2005 in addition to that set out in clause 4.1.
4.2 If any Carrier (other than those seeking to assign under the provisions of Clause 4.1 above) seeks to assign their contract of carriage then the following procedure shall apply:
(i) the Carrier must first offer the contract to the Contractor. The offer must be in writing and the Contractor has 28 days to consider its position and respond to the offer.
(ii) If the Contractor decides to accept the offer of the Carrier the purchase price shall be deemed to be $66,000.00. Upon advising the Carrier of its decision to accept the offer the Contractor shall pay the Carrier the said amount of $66,000.00 and the Carrier shall depart the fleet immediately. The Contractor shall also offer to purchase the truck of the Carrier for the relevant market value at the time and the Carrier may choose to accept the offer of the Contractor if the Carrier so wishes.
(iii) If the Contractor decides to reject the offer of the Carrier then the Contractor shall advise the Carrier accordingly and the Carrier shall be free to assign the contract on the open market.
(iv) Any purchaser introduced by the Carrier must be approved by the Contractor. Approval will not be unreasonably withheld but the Purchaser will be required to pass a pre-engagement medical and submit to a check of their previous work history;
(v) the assignment shall take place on the last business day of the relevant calendar month.
5. Cartage Rates
5.1 Cartage Rates Payable to Carriers
(a) The Contractor shall pay to a Carrier the utilisation cartage rates ("the utilisation rates") set out in Schedule A hereto. All transfers, and surcharges are included in rates as shown in Schedule A with the exception of:
(i) transfers - outside the Sydney metropolitan area;
(ii) surcharges - Sundays, public holidays (or as otherwise agreed);
(iii) waiting time;
(iv) workshop transfers in excess of 30 km
Notation: for transfers outside the Sydney Metropolitan area and for workshop transfers the total distance travelled to and from the plant/workshop shall be calculated less the first 30 kilometres of the trip i.e. if the total distance travelled there and back is less than 30 kilometres then no transfer shall be paid. If the total distance travelled there and back is more than 30 kilometres then a transfer will be paid for the total distance travelled.
(b) Utilisation will be measured on a plant-by-plant basis. The Contractor shall not use a particular plant utilisation rate as a means of disadvantaging another plant which may have a lower utilisation rate. Utilisation for 8 wheeler vehicles will be calculated separately from 6 wheeler vehicles again on a plant-by-plant basis.
(c) On and from 1st November 2004 and on and from the 1st day of every subsequent six monthly period (Sydney Metro) or every subsequent quarter (NSW Country) during the term of the Contract of Carriage, the plant average utilisation rates as adjusted for the previous quarter (calculated on a moving annual total basis) will be payable by the Contractor to the Carrier.
(d) Notation: the utilisation rates contained in Schedule A are graduated in measurements of 100 m3 and are paid to Carriers accordingly.
(e) The utilisation rates paid are based on the plant average, and will exclude those Carriers who have an availability less than ninety five percent (95%) of required working days in the relevant quarter.
(f) The utilisation rates applicable for Metropolitan carriers will be reviewed on 1st May 2005 and thereafter each November and May based on increases or decreases in the cost formula set out in the Rise and Fall Schedule annexed hereto (which Schedule is at the front of Schedule A hereto).
The utilisation rates applicable for Country carriers will be reviewed each quarter and adjusted in accordance with the May and November review adjustments arising from the Metropolitan rates review.
(g) A minimum lead of 3km shall apply at all times, however where a plant has an average cartage distance of less than 5km then a minimum lead of 5km shall apply at that plant